SOFTWARE SERVICE – TERMS AND CONDITIONS

All capitalized terms used in this paragraph have the meaning set forth in Article 1 below. Customer’s use of the Service is subject to this Agreement. If Customer does not agree to this Agreement, Customer may not use or access the Service. If you are an individual agreeing to this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement and such entity shall be the Customer. Customer’s registration for, or use of, the Service shall be deemed to be its acceptance of this Agreement.

Article 1 – Definitions

1.1 “Agreement” means these Terms and Conditions and any Order Form referencing these Terms and Conditions, and any other schedules, exhibits or appendices thereto, whether attached or incorporated by reference.

1.2 “Authorized User” means employees and agents of, and contractors to, Customer and authorized by Customer to access and use the Service solely for the benefit of Customer as provided herein, subject to any limit in number stated in the Order Form

1.3 “Confidential Information” means any information of a party in any form marked or noted as confidential or proprietary or information or materials which a reasonable person should conclude is proprietary information of the disclosing party. In the case of LLODI, such information would include without limitation (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Service; (ii) Documentation, benchmark results, program listings, data structures, logic diagrams, functional specifications, file formats; and (iii) system infrastructure, security/architecture design and/or operations processes (iv) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Service; (iii) product offerings, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies. In the case of Customer, such information would include without limitation Customer Data.

1.4 “Customer” means the entity or individual that has consented to this Agreement by execution of an Order Form that references these Terms and Conditions or by other legally binding method of acceptance of this Agreement, including checking a box on a registration page.

1.5 “Customer Data” means any materials, data and information provided by Customer or its Authorized Users to LLODI in the course of using the Service.
1.6 “Documentation” means LLODI’s electronic documentation made available to Customer as part of the Service under this Agreement.

1.7 “Order Form” means the written order form or other ordering documentation (including a registration Webpage or Website) entered into by LLODI and Customer containing the specific terms and conditions applicable to the Service and which references these General Terms and Conditions.

1.8 “LLODI” means LLodi Technology, S.L., the entity providing the Service to Customer and a party to this Agreement.

1.9 “Service” means the LLODI software as a service described in the Order Form, including, if applicable, any LLODI software (and all updates, revisions, enhancements or releases thereof) required to be downloaded by Customer to use the Service (such software to be used solely in connection with the Service).

Article 2 – Service Usage Rights

2.1 Subject to the terms of this Agreement, LLODI grants to Customer the nontransferable and nonexclusive right during the term stated in the Order Form to permit Authorized Users to access and use the Service solely for Customer’s own internal business purposes as permitted by this Agreement and the Documentation.

2.2 Customer shall not license, sell, lease, rent, outsource, host, use as a service bureau (e.g. perform data migration or data integration work as a billable service) or otherwise make available the Service or any part thereof to third parties, other than Authorized Users. Customer shall be responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Customer.

2.3 Customer shall only make copies of any software delivered as part of the Service as stated in the Order Form. Customer shall not remove notices in the Service or any part thereof (e.g. downloaded software) that refers to copyrights, trademark rights, patent rights and other intellectual property rights. LLODI or its licensors owns all right, title and interest in any and all patent rights, copyrights, trademark rights and other rights in the Service and all parts thereof, as well as any improvements, updates, revisions, design contributions or derivative works conceived or created by either party in or to the Service. Except for the limited rights expressly granted herein, this Agreement does not transfer from LLODI any proprietary right or interest in the Service. All rights not expressly granted to Customer hereunder in the Service are reserved to LLODI and its licensors.

2.4 When using the Service, Customer shall not and shall ensure that Authorized Users do not: (a) modify, translate, decompile, reverse-engineer or otherwise attempt to derive the source materials of the Service or any part thereof; (b) interfere with or disrupt the LLODI software and systems used to host and provide the Service, other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service made known to Customer; (c) circumvent the user authentication or security of the Service or any host, network, or account related thereto; (d) make any use of the Service that violates any applicable local, state, national, international or foreign law; (e) fail to use commercially reasonable efforts to prevent the unauthorized license, reproduction,. sale, transfer, lease, transmission, distribution or other disclosure of the Service or any part thereof, or (f) except for rights provided to Authorized Users as expressly stated in this Agreement, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Customer for access to the Service.

2.5 LLODI shall be entitled to monitor Customer’s compliance with the terms of this Agreement, including but not limited the number of Authorized Users accessing the Service and, subject to Section 4.1, LLODI may utilize the information concerning Customer’s use of the Service to improve LLODI products and services and to provide Customer with reports on its use of the Service.

2.6 LLODI may change or modify the Service at any time. LLODI will only be required to notify Customer of a change or modification to the Service in advance if the change or modification (i) is not within industrial standards and/or customary in the industry and (ii) does not extend and/or enhance the functionalities or architecture of the Service. If LLODI notifies Customer of a change and Customer does not wish to use the Service after notification of such change, Customer may within thirty (30) days of LLODI notification provide LLODI with written notice of termination of the Agreement thirty (30) days thereafter. Upon such termination, LLODI’s sole liability will be to refund any prepaid and unearned fees.

2.7 If Customer is granted a license under this Agreement to a free version of the Service, to the extent permitted by applicable law, Customer agrees that (i) LLODI has no obligation to provide any particular service level or support services, and (ii) LLODI may cease providing the Service at any time without notice. This Section 2.7 supersedes any conflicting term of this Agreement.

2.8 Upon termination of the Service, Customer agrees to delete or otherwise destroy all copies of any LLODI software downloaded by it as part of the Service.

Article 3 – Support, Set up and Security

3.1 LLODI will provide support for the Service as may be described in the Order Form or a schedule to the Order Form.

3.2 LLODI will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Service, and Customer shall comply with the applicable LLODI security guidelines and procedures made known to Customer through the Service or otherwise. However, LLODI does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and LLODI does not warrant secure operation of the Service or that such security technologies will be able to prevent third party disruptions of the Service.

Article 4 – Customer Responsibilities and Obligations

4.1 Customer grants to LLODI the nonexclusive right to use Customer Data for the sole purpose of and only to the extent necessary for LLODI to provide the Service. LLODI shall use all Customer Data in accordance with the foregoing and all applicable laws and regulations, including those related to data privacy.

4.2 Customer shall be responsible for entering its Customer Data into the Service and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Customer hereby represents and warrants to LLODI that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by LLODI or its subcontractors to provide the Service.

4.3 Customer shall limit the use and disclosure of all passwords used to access the Service to Authorized Users. Should Customer learn of a third party having obtained knowledge of a password, Customer shall inform LLODI thereof without undue delay and promptly change the password.

4.4 Customer is responsible for the connection to the Service, including the Internet connection. LLODI shall not be responsible for any failure to meet its obligations under this Agreement which result from or relate to the connection to the Service.

Article 5 – Prices and Terms of Payment

5.1 Customer shall pay to LLODI the fees for the Service as set forth in the applicable Order Form within five (5) days of the date of invoice.

5.2 Upon the renewal of the then-current term of an Order Form for which renewal is permitted, LLODI shall have the right to unilaterally increase any prices specified in the Order Form to LLODI’s then-current fees for the applicable Service based on the length of the renewal term. LLODI shall notify Customer of such increase prior to the date upon which Customer must notify LLODI that it intends not to renew the Order Form, and any such increase shall automatically become effective on the renewal date if the Order Form is renewed.

5.3 Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for alleged defects in the Service.

5.4 Fees do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (“Tax(es)”) on payments hereunder, now or hereafter levied, all of which shall be Customer’s responsibility.

Article 6 – Term, Termination and Termination Support

6.1 The term of this Agreement begins on the Effective Date set forth in the Order Form and shall continue in effect as described in the Order Form.

6.2 Notwithstanding the foregoing, a party may terminate this Agreement in the event of a breach of any provision of the Agreement which is not cured by the other party within thirty (30) days of notification by the non-breaching party. Except for termination by reason of the breach hereof by LLODI, termination will not relieve Customer from the obligation to pay fees that remain unpaid. LLODI shall also have the right to suspend the provision of the Service to Customer upon notice (i) in the event of any delinquency in payment of amounts owed by Customer, or (ii) LLODI reasonably believes that Customer’s continued use of the Service may result in harm to the Service (including the systems used to provide the Service) or other LLODI customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another.

Article 7- Warranties by LLODI

7.1 LLODI warrants that the Service shall perform in accordance, in all material respects, with the functional specifications described in the Documentation. The warranty shall not apply: (i) if the Service is not used in accordance with this Agreement and the Documentation; or (ii) to free (no fee) or trial licenses of the Service.

7.2 Customer shall report any defects to LLODI in writing without undue delay through an LLODI approved support channel, submitting a detailed description of the problem and any information useful for rectification of the defect.

7.3 Customer’s sole and exclusive remedies for any breach of the warranty contained in Section 8.1 shall be, at LLODI’s option: (i) to bring the performance of the Service into compliance in all material respects with the functional specifications stated in the Documentation; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the applicable Service during the period of defect.

7.4 EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE 8.1, LLODI DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF THE SERVICE, OR ANY INFORMATION TECHNOLOGY SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE UNINTERRUPTED OR ERROR FREE.

Article 8- Confidential Information

8.1 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential, provided each party may disclose Confidential Information to its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “reasonable steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.

8.2 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.

Article 9 – Indemnification

9.1 LLODI shall defend Customer against any claim that all or any part of the Service infringes any SPAIN patent rights, or any trade secret of any third party (a “LLODI Infringement Claim”), provided Customer gives prompt notice to LLODI in writing of any LLODI Infringement Claim and permits LLODI to control and defend or settle such LLODI Infringement Claim at LLODI’s expense and with LLODI’s choice of counsel. Customer shall cooperate with LLODI, at LLODI’s expense, in defending or settling such LLODI Infringement Claim, and Customer may join in the defense with counsel of Customer choice at Customer own expense. LLODI shall pay any settlement made by it of such LLODI Infringement Claim and shall pay and indemnify Customer against any damages awarded against Customer as the result of a judgment rendered in such LLODI Infringement Claim defended by LLODI.  LLODI shall pay any settlement made by it of such LLODI Infringement Claim and shall pay and indemnify Customer against any damages awarded against Customer as the result of a judgment rendered in such LLODI Infringement Claim defended by LLODI. LLODI shall have no liability for any infringement based on (i) the combination or use of any Service with other technology, items, or processes not furnished by LLODI if such infringement would have been avoided by the use of the Service alone. If the use of the Service by Customer is enjoined or threatened pursuant to a LLODI Infringement Claim, then LLODI may do one or more of the following, at its option: (i) procure for Customer the right or license to use the Service in accordance with this Agreement; (ii) modify the Service so as to render it non-infringing without loss of material functionality; or (iii) terminate this Agreement upon notice to Customer, provided that it shall provide a refund of any prepaid and unearned fees for the Service hereunder.
THIS SECTION STATES LLODI’S ENTIRE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM RELATING TO THE SERVICES.

9.2 Customer shall indemnify and hold LLODI harmless from third party claims arising from or related to (i) any use of the Service (a) in breach of this Agreement, (b) in contravention of any policies of LLODI applicable to the Service and made known to Customer and (c) in violation of any applicable law or regulation or in violation of the legal rights of others or (ii) the Customer Data. The foregoing is, however, conditional upon LLODI (i) notifying Customer thereof in writing and in detail without undue delay, (ii) authorizing Customer to conduct any judicial and extrajudicial proceedings with such third party on its own, and (iii) providing Customer at the expense of Customer with any reasonable assistance so that Customer can defend against the claim.

Article 10 – Limitations of Liability

10.1 Except for claims arising under Article 9, under no circumstances shall LLODI be liable to Customer or any other person or entity by reason of this Agreement or the subject hereof for an amount of damages in excess of the amount of fees paid to it for the Service in the twelve (12) month period preceding the date on which the claim of action first arose.

10.2 EXCLUDING ANY CLAIM OF LLODI FOR BREACH BY CUSTOMER OF ARTICLE 2 OR OTHER VIOLATION OF ITS CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES SHALL LLODI OR CUSTOMER BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, EXEMLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL, PROFITS OR DATA, WITHOUT REGARD TO WHETHER SUCH DAMAGES OR LOSSES WERE FORSEEABLE.

Article 11 – Miscellaneous

11.1 If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

11.2 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.

11.3 This Agreement shall be governed by and construed under the laws of SPAIN, without reference to its conflicts of law principles.

11.4 All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of LLODI and Customer at the addresses first set forth in any Order Form, registration form or the preamble to these General Terms and Conditions.

11.5 Excluding payment obligations, any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

11.6 This Agreement constitutes the complete and exclusive statement of the agreement between LLODI and Customer, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to LLODI. This Agreement shall not be assigned by Customer.
11.7 The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the Order Form; and (ii) and these Terms and Conditions.